The Environmental Protection Agency, having won a key ruling by the D.C. Circuit which upheld part of its Tailoring Rule, now is expected to focus efforts on developing new carbon dioxide standards and possible thresholds for biomass facilities.

According to Brendan Collins, a partner at Ballard Spahr, the EPA now must consider the appeals court’s instructions and make revisions as needed to comply with the rulings—which likely will mean it will review a de minimis emissions threshold level for carbon dioxide, currently set at 75,000 tons per year.

He said that the EPA may also use this rulemaking opportunity concerning the carbon dioxide de minimis analysis to address emissions from biomass facilities. The D.C. Circuit in 2013 struck down an EPA rule temporarily exempting biomass-burning facilities from carbon dioxide emissions limits, which was hailed as a victory by environmental groups seeking consistency in the federal greenhouse gas regulation policy.

The EPA may be ready to take action again on the matter, Collins said. “EPA’s done its study and talked about a new accounting procedure and a rationale for why you exclude greenhouse gas from biomass—it’s non-anthropogenic, or otherwise not worthy to be counted,” he said.

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